LEON D. HANKINS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Court reversed convictions for aggravated battery with a firearm and aggravated assault with a firearm as subsumed into the greater offense of burglary of a dwelling with an assault or battery with a firearm, violating double jeopardy.
Convictions for aggravated battery with a firearm and aggravated assault with a firearm are reversed as subsumed into the greater offense of burglary of a dwelling with an assault or battery with a firearm.
[1] When lesser offenses of aggravated battery with a firearm and aggravated assault with a firearm involve the same victim and occur in the same incident as the greater offe…
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Join FLexlaw to unlock all legal intelligenceLeon Hankins was convicted of attempted first-degree murder with a firearm, burglary of a dwelling with an assault or battery with a firearm, arson of…
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Leon Hankins timely appeals his judgment and sentences for attempted first-degree murder with a firearm, burglary of a dwelling with an assault or battery with a firearm, arson of a dwelling, aggravated battery with a firearm, and aggravated assault with a firearm. He argues his convictions for aggravated battery with a firearm and aggravated assault with a firearm violate double jeopardy because they were subsumed into the greater offense of burglary of a dwelling with an assault or battery with a firearm. The State properly concedes error. See McGhee v. State, 133 So.3d 1137, 1138-39 (Fla. 5th DCA 2014) (reversing conviction for aggravated assault with a firearm because it was subsumed into the greater offense of burglary of a dwelling with an assault or battery while armed with a firearm where offenses involved the same victim and occurred in the same incident); Farrier v. State, 145 So.3d 199, 199-200 (Fla. 5th DCA 2014) (“[reversing] both convictions for aggravated assault with a firearm because they were subsumed into the greater offense of burglary of a dwelling with an assault or battery with a firearm.”) We, therefore, reverse the convictions for aggravated battery with a firearm and aggravated assault with a firearm and remand to the trial court for entry of a corrected judgment. McGee, 133 So.3d at 1139. The remaining convictions are affirmed.
AFFIRMED in part; REVERSED in part; REMANDED TO CORRECT JUDGMENT.
TORPY, C.J., PALMER and BERGER, JJ., concur.
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Tambriz-Ramirez v. State, 248 So. 3d 1087 (Fla. 2018)…aggravated assault or attempted sexual battery, Tambriz-Ramirez's convictions do not violate the prohibition against double jeopardy. The Fourth District certified conflict with Dykes v. State, 200 So. 3d 162 (Fla. 5th DCA 2016), Hankins v. State , 164 So. 3d 738 (Fla. 5th DCA 2015), Smith v. State , 154 So. 3d 523 (Fla. 1st DCA 2015), McGhee v. State , 133 So. 3d 1137 (Fla. 5th DCA 2014), Green v. State , 120 So. 3d 1276 (Fla. 1st DCA 2013), Estremera v. State , 107 So. 3d 511 (Fla. 5th DCA 2013), White v.…1 / 2
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Tambriz-Ramirez v. State, 213 So. 3d 920 (Fla. 4th DCA 2017)…dy bars [defendant’s convictions for aggravated battery with a firearm and aggravated assault with a firearm because they were subsumed into the greater offense of burglary of a dwelling with an assault or battery with a firearm”); Hankins v. State, 164 So. 3d 738, 738 (Fla. 5th DCA 2015) (granting relief where the State conceded that “convictions for aggravated battery with a firearm and aggravated assault with a firearm violate double jeopardy because they were subsumed into the greater offense of burglary…
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Damion Dykes v. State, 200 So. 3d 162 (Fla. 5th DCA 2016)…ion against double jeopardy. “Double jeopardy claims are properly the subject of Rule 3.850 relief.” Rios v. State, 889 So. 2d 940, 941 (Fla. 5th DCA 2004) (citing Wilson v. State, 693 So. 2d 616 (Fla. 2d DCA 1997)). Recently, in Hankins v. State, 164 So. 3d 738, 738 (Fla. 5th DCA 2015), this Court concluded that “convictions for aggravated battery with a firearm and aggravated assault with a firearm violate double jeopardy because they were subsumed into the greater offense of burglary of a dwelling with a…
Authorities Cited
- McGHEE v. State, 133 So. 3d 1137 (Fla. 5th DCA 2014)
- Antorri Deshea Farrier v. State, 145 So. 3d 199 (Fla. 5th DCA 2014)